Transportation

The transportation industry is at the forefront of economic growth and globalization. The ability to move goods and transport people efficiently—whether by truck, ship, airplane or train—is crucial to the success of businesses worldwide. And while the renewed interest of venture capitalists, an increase in public/private partnerships and the granting of stimulus funds offer promise of more opportunities for transportation businesses and their customers, these and other factors—new technologies that track goods more accurately, changing regulations—also complicate the operations of transportation companies.

Thompson Coburn’s transportation attorneys represent ocean carriers, ports, air carriers, motor carriers, public transit systems, trade associations, shippers and cargo owners, and can handle the breadth of issues that affect the industry and its customers. Our attorneys have decades of experience and understand that transportation issues are complex and often include substantial capital investments with multiple parties that are directly and indirectly involved. In addition, they handle regulatory issues involving competition and antitrust proceedings, safety and environmental regulation, licensing, cargo security, joint ventures and international services arising before courts, federal agencies and the U.S. Congress. We also serve transportation innovators by handling their intellectual property work.

Our transportation attorneys counsel clients on air, rail, truck and maritime HAZMAT compliance issues involving U.S. federal regulations; the International Civil Aviation Organization (ICAO) Technical Instructions for the Safe Transport of Dangerous Goods by Air; the International Air Transport Association (IATA) Dangerous Goods Regulations; and the International Maritime Dangerous Goods (IMDG) Code.

Several of our attorneys have held positions within the Departments of Transportation, Treasury and Justice; the U.S. International Trade Commission; on staffs in the U.S. House of Representatives and the Senate; and at related trade organizations. Because of this range of experiences, our attorneys can address issues involving nearly any sector of the transportation industry.

Partners: Alvey Jr., Thomas W.; Anderson, Anthony A.; Bay, William R.; Bock, Cherie Stephens; Bond, Christopher S.; Bossi, Mark V.; Brown, Eileen P.; Brownlee, Robert H.; Conrad, Cathryn A.; Dean Jr., Warren L.; Dick, David A.; Dorwart, Donald B.; Farmer, John S.; Gill Jr., Edward J.; Godiner, Clifford A.; Goodloe, Allan; Hakes, William D.; Hammett, Ruthanne C.; Harla, Harlan A.; Jones, Thomas E.; Kaiser, Matthew; Krumholz, Marjorie F.; Lamb, Nicholas J.; Lawton, Richard L.; Massey, Raymond L.; McGowan, Thomas Sean; Morris, Michael J.; Mueller, Richard A.; O'Keefe, Michael D.; Reitz, Kurt E.; Rosenberg, Sharon B.; Shapiro, Robert A.; Sonderegger, Paul T.; Starke, Jane Sutter; Stoltz, Gerald D.; Stratmann, David A.; VanDorn, Erick E.; Woodman, G. Kent

Counsel: Bridges, Kristine Helen

Associates: Campbell, Crystal M.; Gammell, Orisia K.; Hitzemann, Christopher E.; McGinley, Kevin C.; Rochat, Ross E.

AET Limited
Air Transport Association of America, Inc.
American Commercial Lines LLC
American Public Transportation Association (APTA)
Dallas Area Rapid Transit (DART)
Export-Import Bank of the United States
Global Marine Transportation
Insituform Technologies
Regional Transportation Commission of Southern Nevada (RTC)
SonAir Serviço Aéreo, S.A. (SonAir)
South Carolina State Ports Authority (SCSPA)
The Great Lakes Towing Company
Washington Metropolitan Area Transit Authority (WMATA)

Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743 (2002):
Thompson Coburn successfully represented the SCSPA before the United States Supreme Court. States and their instrumentalities are entitled to sovereign immunity in proceedings before federal administrative tribunals. A vessel operator filed a complaint at the Federal Maritime Commission against the SCSPA. The Administrative Law Judge dismissed the complaint on the basis of the state’s sovereign immunity reflected in the 11th Amendment to the U.S. Constitution. The Commission itself reversed. We petitioned for review by the U.S. Court of Appeals for the Fourth Circuit and secured a unanimous decision reversing the Commission. The Federal Maritime Commission, joined by the Solicitor General, filed a Petition for Certiorari, which was granted. We successfully argued that the principle of state sovereign immunity reflected in the 11th Amendment transcended its literal language to apply to proceedings before federal agencies and was not limited to cases filed in Article III courts. The decision, one of the most significant in perhaps the oldest line of Supreme Court cases, affirms the dual sovereignty inherent in our federal system of government.
Obtained an exemption for Insituform Technologies from the hours of service regulations for most of the client’s day-to-day activities. Our extensive efforts included direct meetings with the appropriate regulatory officers within the DOT. Insituform Technologies provides substantial maintenance and repair services to utility companies worldwide, with a particular emphasis on providing services to U.S. municipal entities. Given the nature and time sensitivity of the products used by the client, the utility-related work frequently requires the client’s drivers to operate commercial motor vehicles beyond the strict confines of the applicable hours of service regulations.
Represented a foreign-based shipping company in negotiating vessel construction contracts with major international shipyards in Korea, Japan and China.
Represented the Export-Import Bank of the United States in the guaranteed financing of two off-shore drilling rigs, each with values in excess of $100 million, for export to a Mexican company.
Represented a client in the $50 million sale of its vessel fleet, including 19 boats and 29 barges. Our attorneys provided advice and counsel to the company on admiralty, labor and employment, and regulatory issues.
In December 2006, our firm requested and obtained a Modified Certificate of Public Convenience and Necessity (MRC) from the Surface Transportation Board (STB) for a state port authority to operate on a line known as the Port Royal Railroad. Surrounding landowners petitioned for reconsideration of the MRC, arguing that they owned the fee interest in the right-of-way and that the STB lacked jurisdiction to issue the MRC because the line had been abandoned. We represented the port authority in its opposition to the landowners. The STB denied the landowners’ petition; the landowners again petitioned for reconsideration of the decision. In July 2008, we filed a notice of intent to terminate service on the line and a joint request for a notice of interim trail use (NITU) that would permit rail banking/interim trail use of the line under the National Trails System Act, 16 U.S.C. 1247(d). The landowners opposed the notice. In May 2009, the STB denied the landowners’ petition for reconsideration and granted the joint request for a NITU.
Led a coalition that successfully lobbied Congress in connection with the reform of Subpart F relating to the taxation of foreign-based company shipping income and have represented clients in the enactment of the alternate tonnage tax regime for U.S.-flagged vessels operating in international trade.
Filed a brief on behalf of Dallas Area Rapid Transit (DART) in the U.S. Supreme Court, opposing a Petition for a Writ of Certiorari filed by Amalgamated Transit Union Local No. 1338. In the brief, DART opposes Amalgamated Transit Union Local No. 1338’s request for a writ of certiorari to consider whether the Texas Supreme Court correctly held that Congress did not preempt, by implication, a Texas state governmental entity’s immunity from suit when Congress enacted the Urban Mass Transit Act of 1964, and in particular Section 13(c) of that Act, which conditions a state transit entity’s receipt of federal funds on the state transit entity entering into an agreement that seeks to preserve the state transit workers’ collective-bargaining rights. DART argues that the case did not warrant the Court’s certiorari review because the Texas Supreme Court’s decision aligns with the Court’s constitutional precedent and the reach of, and limits on, Congress’ constitutional authority.
Washington Metropolitan Area Transit Authority (WMATA) and other municipal transit systems nationwide faced billions of dollars of termination liabilities arising out of the recent credit freeze. WMATA and the other systems financed their acquisition of subway cars and buses with tax-advantaged deals known as SILOs (sale-in, lease-out) and LILOs (lease-in, lease-out) backed by AIG, Ambac and other sureties. The drop in the credit ratings of these sureties triggered technical defaults and extraordinary accelerated termination payment liabilities, in this case $43 million, that jeopardized the systems' continuing operations.

Taking the lead nationwide, WMATA filed suit in the U.S. District Court in Washington, D.C. and prevailed in a temporary restraining order (TRO) proceeding to prevent the first of many of these transactions from unraveling. Following issuance of the TRO, an evidentiary hearing on a preliminary injunction was held. The court expressed serious concerns about the windfall recovery sought by the investor bank and urged the parties to resolve the dispute. Thompson Coburn negotiated resolution of the dispute, avoiding termination liability for WMATA.
Advised a chemical company with respect to an investigation by the Federal Aviation Administration (FAA), Security and Hazardous Material Division, arising from multiple shipments of hazardous materials in apparent noncompliance with the applicable regulations of the Pipeline and Hazardous Materials Safety Administration (PHMSA). We participated extensively in structuring and preparing an initial submission as well as supplemental submissions to the FAA. Despite the potential for hundreds of thousands of dollars in penalties, the FAA agreed, following review of the submissions, to resolve the matter with a Letter of Warning and to forego any civil penalties.
Aid companies in developing supply chain security programs in compliance with the guidelines of U.S. Customs and Border Protection.
Negotiate transportation, multimodal and distribution contracts that permit a major distributor to outsource its tracking, warehousing and distribution activities to service providers.

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Transportation